EXHIBIT A
FORM OF UNDERWRITING AGREEMENT
Dated as of [ ]
REPUBLIC OF PERU
[NAMES OF REPRESENTATIVES]
AND
THE OTHER UNDERWRITERS NAMED HEREIN
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UNDERWRITING AGREEMENT
U.S.$____________
[Title of Securities]
REPUBLIC OF PERU
U.S.$_____________
[Title of Securities]
UNDERWRITING AGREEMENT
[ ]
[Representatives]
as Representatives of the several Underwriters listed herein
Ladies and Gentlemen:
THE REPUBLIC OF PERU (the "Republic" or "Peru") proposes to issue
and sell to the underwriters, whose names are set forth on Schedule I hereto,
acting severally, not jointly (each an "Underwriter" and, collectively, the
"Underwriters"), for whom [Representatives] are acting as representatives (in
such capacity, the "Representatives"), U.S.$[______] aggregate principal amount
of its securities identified in Schedule I hereto (the "Securities") consisting
of debt securities to be issued pursuant to a Fiscal Agency Agreement (the
"Fiscal Agency Agreement") dated [______], between the Republic and [______]
(the "Fiscal Agent") and, if so specified in Schedule II(1) hereto, warrants
(the "Warrants") to be issued under a warrant agreement (the "Warrant
Agreement") with the warrant agent named therein (the "Warrant Agent"). To the
extent there are no additional Underwriters listed on Schedule II other than
you, the term Representatives as used herein shall mean you, as Underwriters,
and the terms Representatives and Underwriters shall mean either the singular or
plural as the context requires. The Securities to be issued by the Republic will
be evidenced initially by one or more Registered Securities (each a "Registered
Bond") representing the Securities sold or resold pursuant to a registration
statement under Schedule B of the Securities Act of 1933, as amended (the
"Securities Act"), dated [ ]. Except where the context otherwise requires, terms
not otherwise defined in this Agreement shall have the meanings specified in the
Fiscal Agency Agreement or in the Securities.
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1 If it is specified in Schedule II hereto that this Agreement also relates to
the issue and sale of Units or Warrants: (i) the number of Units or Warrants to
be sold together with the applicable denominations of the Securities and the
title and principal amount of the securities covered by each Warrant and of all
the Units or Warrants are as specified in Schedule I hereto, (ii) all references
herein to "Securities" are deemed to include or refer to the Units or Warrants,
as the case may be, and all references to the "Fiscal Agency Agreement" are to
the Warrant Agreement, as further specified in Schedule II hereto, (iii) Section
8 hereof includes such other agreements of Peru as are set forth in Schedule II
hereto, and (iv) the legal opinions and other documents to be delivered pursuant
to Section 9 hereof shall be appropriately modified to cover the Units or the
Warrants, the Warrant Agreement, the securities covered by each of the Warrants
and such related matters in such manner as the Representatives or their counsel
may reasonably request.
1. Issue of Securities, Prospectus and Publicity. (a) The Republic
agrees to issue and sell the Securities on [ ] or such later date, not being
later than [ ], as the Republic and the Representatives may agree (the "Closing
Date") to the Underwriters or as the Underwriters may direct. Each Underwriter,
severally and not jointly, agrees to purchase at a price equal to [____]% of the
aggregate principal amount thereof plus accrued interest, if any, from [ ], to
the Closing Date (the aggregate amount of the purchase price paid by the
Underwriters being the "Purchase Price"), subject to the adjustments referred to
in Section 6(c), the principal amount of the Securities set forth opposite its
name on Schedule I, as such amount may be adjusted pursuant to Section 11.
(b) The Republic will enter into, not later than the Closing Date
(and provide the Representatives with copies of), the Fiscal Agency Agreement
with the Fiscal Agent. The Securities will be issued in accordance with the
terms of the Fiscal Agency Agreement and will be in the forms and contain such
terms as set forth therein.
(c) The Republic confirms the arrangements made on its behalf by the
Representatives for announcements in respect of the Securities to be published
on such dates and in such newspapers or other publications as the
Representatives may determine.
2. Stabilization. (a) The Representatives, for their own accounts,
may to the extent permitted by applicable law, engage in transactions that
stabilize, maintain, or otherwise affect the price of the Securities, including
without limitation, overalloting the offering, creating a short position and
bidding for and purchasing Securities to cover such short positions, and bidding
for and purchasing Securities to stabilize the price of the Securities. In doing
so, the Representatives shall act as principals and not as agents of the
Republic and any loss resulting from over-allotment or stabilization will be
borne, and any profit arising therefrom shall be retained, by the
Representatives. Such transactions may be effected on the Luxembourg Stock
Exchange, in the over-the-counter market or otherwise. The Representatives are
not required to engage in these activities and may end these activities at any
time.
(b) Nothing in this Section 2 shall be construed as requiring the
Republic to issue more than U.S.$_________ in principal amount of the
Securities.
3. Agreements by the Underwriters. (a) The Underwriters agree
severally, and not jointly, to purchase the Securities at the Purchase Price on
the Closing Date subject to the terms of this Agreement.
(b) Each of the Underwriters represents, warrants and agrees that it
and, where applicable, each of its affiliates that participate in the
distribution of the Securities has complied and will comply with the terms set
out in Schedule III.
(c) The Republic acknowledges and agrees that the Underwriters may
sell to any of their affiliates Securities purchased by any Underwriter, and
that any of such affiliates may sell to other such affiliates or to the
Underwriters Securities purchased by such affiliates.
4. Listing. (a) The Republic confirms that it has authorized the
Representatives to make or cause to be made an application for the Securities,
on behalf of the Republic, to be listed on the Luxembourg Stock Exchange (the
"Stock Exchange").
(b) The Republic agrees to supply to the Representatives for
delivery to the Stock Exchange copies of the Final Prospectus (as defined in
Section 5(a)(i)), on behalf of the Republic, and such other documents,
information and undertakings as may be required for the purpose of obtaining
such listing.
5. Representations, Warranties and Covenants of Peru. Peru
represents, warrants and covenants to each of the Underwriters that:
(a) (i) The Republic meets the requirements for use of Schedule B
under the Securities Act. The Republic has filed with the Securities
and Exchange Commission (the "Commission") a registration statement
under Schedule B (No. [ ]) covering the registration of the
Securities under the Securities Act and including the related base
prospectus (the "Base Prospectus"). Such registration statement has
been declared effective by the Commission and no order preventing or
suspending use of the Base Prospectus has been issued by the
Commission. Such registration statement, as amended to the date
hereof and together with the Base Prospectus constituting a part
thereof, any prospectus supplement relating to the Securities and
any documents incorporated therein by reference, meets the
requirements set forth in Release No. 33-6424 (the "Release") and
Schedule B under the Securities Act. Such registration statement
(including the Base Prospectus), as amended to the date hereof,
together with any exhibits thereto, any documents incorporated by
reference therein and a registration statement, if any, increasing
the size of the offering, filed pursuant to Rule 462(b) under the
Securities Act, which became effective upon filing are hereinafter
collectively referred to as the "Registration Statement." The
Republic proposes to file with the Commission pursuant to Rule
424(b) under the Securities Act a supplement to the Base Prospectus
(the "Prospectus Supplement") relating to the Securities and the
plan of distribution thereof and has previously advised you of all
other information (financial, statistical and other), if any, with
respect to the Republic to be set forth therein.
The Republic has adequately disseminated the Base
Prospectus to the Public a reasonable period before the offering of
the Securities in accordance with the Release. The Base Prospectus
as supplemented by the Prospectus Supplement in the form in which it
shall be filed with the Commission pursuant to Rule 424(b) is herein
called the "Final Prospectus." References to the "effective date" of
the Registration Statement shall be deemed to refer to the date the
Registration Statement was declared effective by the Commission.
(ii) Prior to the termination of the offering of the
Securities, the Republic will not file any amendment to the
Registration Statement or supplement to the Final Prospectus which
shall not have previously been furnished to each of the
Representatives or of which each of the Representatives shall not
previously have been advised or to which any of the Representatives
shall have reasonably objected in writing.
(iii) With respect to the Registration Statement and any
amendment thereof, at the time such Registration Statement and any
amendment thereof became or becomes effective, and as of the date
hereof and at the Closing Date and, with respect to the Final
Prospectus and any amendment or supplement thereto, as of the date
of the Final Prospectus, as amended or supplemented as of any such
time, and any amendment or supplement thereto, and as of the date
hereof and at the Closing Date, the Registration Statement, as
amended as of any such time and the Final Prospectus does or will
comply in all material respects with the provisions of the
Securities Act and the rules and regulations thereunder, including
the Release and Schedule B. None of the Registration Statement, as
amended as of any such time, or the Final Prospectus, as amended or
supplemented as of any such time, contains or will contain any
untrue statement of a material fact or omits or will omit to state
any material fact required to be stated therein or necessary to make
the statements therein (with respect to the Final Prospectus in the
light of the circumstances under which they were made) not
misleading; provided, however, that the foregoing representations
and warranties in this subparagraph (iii) shall not apply to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Republic by any of the
Underwriters, through the Representatives, expressly for use in the
Registration Statement or the Final Prospectus.
(b) Since the respective dates as of which information is given in
the Final Prospectus and the Registration Statement, there has not been any
material adverse change, or any event that would reasonably be expected to
result in a prospective material adverse change in the financial, economic or
political condition of Peru, or in the ability of Peru to perform its
obligations under this Agreement, the Fiscal Agency Agreement or the Securities,
otherwise than as set forth in or contemplated in the Registration Statement or
the Final Prospectus.
(c) The execution and delivery of this Agreement, the Fiscal Agency
Agreement and all other documents to be executed and delivered by Peru hereunder
or thereunder, the issuance and delivery of the Securities and the performance
of the terms of the Securities have been duly authorized by Peru, and have been
or will be duly executed and delivered by Peru; and this Agreement, the Fiscal
Agency Agreement and, upon due authentication by the fiscal agent under the
Fiscal Agency Agreement, the Securities constitute or will constitute valid and
binding obligations of Peru, enforceable against Peru in accordance with their
respective terms and, in the case of the Securities, entitled to the benefits
provided by the Fiscal Agency Agreement, subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights
generally, to general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and to possible judicial action
giving effect to foreign governmental actions or sovereign laws affecting
creditors' rights.
(d) The execution and delivery of this Agreement, the Fiscal Agency
Agreement, the issuance and delivery of the Securities and the performance of
the terms of the Securities constitute private and commercial acts rather than
public or governmental acts, as such terms are defined under the U.S. Foreign
Sovereign Immunities Act. Under the laws of Peru, neither Peru nor any of its
property, except for (i) property used by a diplomatic or consular mission of
Peru; (ii) property of a military character and under the control of a military
authority or defense agency of Peru; (iii) public property; (iv) shares of
Peruvian public sector entities or shares of Peruvian private sector entities
owned or controlled by Peru or by a Peruvian public sector entity, or revenues
collected from the sale of such shares, to the extent such shares or revenues
are exempt by Peruvian law from attachment or execution; or (v) funds deposited
in Peru's accounts held in the Peruvian financial system, has any immunity from
jurisdiction of any court or from set-off or from execution, attachment or any
other legal process. The waivers of immunity by Peru contained in this
Agreement, the Fiscal Agency Agreement and the Securities, the appointment of
the process agent in this Agreement, the Fiscal Agency Agreement and the
Securities, the consent by Peru to the jurisdiction of the courts specified in
this Agreement, the Fiscal Agency Agreement, and the terms and conditions of the
Securities and the provision that the laws of the State of New York govern this
Agreement, the Fiscal Agency Agreement and the Securities, are irrevocably
binding on Peru.
(e) There is no constitutional provision, or any provision of any
treaty, convention, statute, law, regulation, decree, court order or similar
authority binding upon Peru, or any provision of any contract, agreement or
instrument to which Peru or any Governmental Agency (as defined below) is a
party, which would be materially contravened or breached, or which would result
in the creation of any lien or encumbrance, or under which a default would arise
or a moratorium in respect of any obligations of Peru or any Governmental Agency
be effected, as a result of the execution and delivery by Peru of this
Agreement, the Fiscal Agency Agreement, [the Warrant Agreement](2) or the
issuance and delivery of the Securities as contemplated in this Agreement, or as
a result of the performance or observance by Peru of any of the terms of this
Agreement, the Fiscal Agency Agreement, [the Warrant Agreement] or the
Securities. "Governmental Agency" means each agency, department, ministry,
authority, municipality, statutory corporation or statutory body or judicial
entity of Peru or any political subdivision thereof or therein, now existing or
hereafter created, and any bank, corporation or other legal entity 51% or more
of the capital or voting stock or other ownership interest of which is now or
hereafter owned or controlled, directly or indirectly, by Peru or by any state
or municipality of Peru.
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2 In the case of an issuance of Warrants or Units, or if the particular issuance
of Securities includes the execution of any other material agreements by the
Republic, throughout this Agreement add such agreements after or in place of, as
the case may be, "[the Warrant Agreement]."
(f) No Governmental Approval (as defined below) is required for the
due execution, delivery and performance by Peru of this Agreement, the
Securities, the Fiscal Agency Agreement, [the Warrant Agreement] or the issuance
and delivery of the Securities as contemplated in this Agreement, or for the
validity or enforceability of this Agreement, the Securities or the Fiscal
Agency Agreement against Peru, other than those Governmental Approvals that have
been duly obtained and are in full force and effect on the date hereof and all
of which will be in full force and effect on the Closing Date and provided that,
only in respect of the performance of the Securities, any payment of principal
or interest arising from such performance is included by Peru in the Budget Law
corresponding to the fiscal year in which such payment is to be due.
"Governmental Approval" means any approval, authorization, permit, consent,
exemption or license and other action of or by, and any notice to or filing or
registration with, Peru, any Governmental Agency or any other governmental
authority or agency or regulatory or administrative body of Peru or any
political subdivision thereof or therein (including, without limitation, any
thereof relating to budget approvals and exchange controls).
(g) There is no pending or, to the knowledge of Peru, threatened
action or proceeding affecting Peru or any Governmental Agency before any court,
governmental agency or arbitrator which may, individually or in the aggregate,
materially adversely affect the financial condition of Peru or its ability to
perform its obligations under this Agreement, the Fiscal Agency Agreement, [the
Warrant Agreement] or the Securities, which purports to affect the legality,
validity or enforceability of this Agreement, the Fiscal Agency Agreement, [the
Warrant Agreement] or the Securities, except as otherwise disclosed in the Final
Prospectus.
(h) Peru is a member of, and is eligible to use the general
resources of, the International Monetary Fund (the "IMF"), the Inter-American
Development Bank (the "IDB") and the International Bank for Reconstruction and
Development (the "World Bank"). The IMF, the IDB and the World Bank have not
limited, pursuant to their Articles of Agreement or Rules and Regulations, the
use by Peru of the general resources of the IMF, the IDB or the World Bank.
(i) Other than as set forth in the Final Prospectus, Peru is not in
default in the payment of principal, interest or any other amount owing on any
obligation in respect of indebtedness for money borrowed, and Peru has not
received any notice of default or acceleration with respect to any obligation in
respect of indebtedness for money borrowed, in each case or in the aggregate,
which would have a material adverse effect on the financial condition of Peru or
its ability to perform its obligations under this Agreement, the Fiscal Agency
Agreement, [the Warrant Agreement] or the Securities, or which is otherwise
material to the rights of the holders of the Securities; the issue and sale of
the Securities and the compliance by Peru with all of the provisions of this
Agreement, the Fiscal Agency Agreement, [the Warrant Agreement] or the
Securities and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, the Constitution of Peru, as
amended to the date hereof, any statutes, laws, decrees or regulations of Peru
or any treaty, convention or material agreement to which Peru is a party and
which default, in each case or in the aggregate, would have a material adverse
effect on the financial, fiscal or economic condition of Peru or its ability to
perform its obligations under this Agreement, the Fiscal Agency Agreement, [the
Warrant Agreement] or the Securities or which is otherwise material to the
rights of the holders of the Securities.
(j) This Agreement[,] [and] the Fiscal Agency Agreement [and the
Warrant Agreement] are, and upon authentication by the fiscal agent, the
Securities will be, in proper legal form under the laws of Peru for the
enforcement thereof in Peru against Peru. Any judgment issued by a New York
court under this Agreement, the Fiscal Agency Agreement, [the Warrant Agreement]
or the Securities will be recognized as legally binding and may be enforced or
executed in Peru against Peru without the local court reopening the case,
provided that the following requirements are met: (i) the judgment does not
resolve matters under the exclusive jurisdiction of Peruvian courts (such as
matters involving Peruvian real estate property); (ii) such court had
jurisdiction under its own conflicts of law rules and under general principles
of international procedural jurisdiction; (iii) the defendant was served in
accordance with the laws of the place where the proceeding took place, was
granted reasonable opportunity to appear before such foreign court, and was
guaranteed due process rights; (iv) the judgment has the status of res judicata
as defined in the jurisdiction of the court rendering such judgment; (v) there
is no pending litigation in Peru between the same parties for the same dispute,
which shall have been initiated before the commencement of the proceeding that
concluded with the foreign judgment; (vi) the judgment is not incompatible with
another judgment that fulfills the requirements of recognition and
enforceability established by Peruvian law unless such foreign judgment was
rendered first; (vii) the judgment is not contrary to public order or good
morals; and (viii) it is not proven that such foreign court denies enforcement
of Peruvian judgments or engages in a review of the merits thereof.
Notwithstanding the above, the execution by Peruvian courts of any judgment
ordering payment of any principal or interest arising from the Securities by the
Republic will be subject to availability of funds according to the Budget Law
corresponding to the fiscal year on which such payment is to be due.
(k) To ensure the legality, validity, enforceability, priority or
admissibility in evidence in Peru of this Agreement, the Fiscal Agency
Agreement, [the Warrant Agreement] or the Securities, it is not necessary that
this Agreement, the Fiscal Agency Agreement, [the Warrant Agreement,] the
Securities or any other document or instrument hereunder or thereunder be
registered, recorded or filed with any court or other authority in Peru or be
notarized or that any documentary, stamp or similar tax, imposition or charge be
paid on or in respect of this Agreement, the Fiscal Agency Agreement, [the
Warrant Agreement,] the Securities or any other document or instrument hereunder
or thereunder, other than any court tax of such amount as may apply from time to
time under applicable Peruvian law in respect of this Agreement, the Fiscal
Agency Agreement, [the Warrant Agreement,] the Securities or any other document
or instrument hereunder or thereunder brought before the Peruvian courts.
(l) The Securities, when duly authenticated by the fiscal agent,
will constitute direct, unconditional, unsecured and unsubordinated obligations
of Peru; the full faith and credit of Peru will be pledged for the due and
punctual payment of the principal of, interest on, and any additional amount
with respect to, the Securities and the performance of the covenants therein
contained; the Securities will at all times rank pari passu in priority of
payment, in right to security and in all other respects with all other existing
and future External Indebtedness (as defined in the Securities) of Peru.
(m) There is no tax, levy, deduction, charge or withholding imposed
by Peru or any political subdivision thereof either (i) on or by virtue of the
execution, delivery or enforcement of this Agreement, the Fiscal Agency
Agreement, [the Warrant Agreement] or the Securities or in connection with the
issuance of the Securities or (ii) on any payment to be made by Peru thereunder
or under the Securities, provided that the current exemption from Peruvian
income tax on interest accrued in connection with the Securities, which elapses
on December 31, 2006, is extended and maintained thereafter through the life of
the Securities.
(n) The execution and delivery of this Agreement, the Fiscal Agency
Agreement, the Securities and all other documents to be executed and delivered
by Peru hereunder or thereunder, the incurrence of the obligations herein and
therein set forth, the consummation of the transactions herein and therein
contemplated and the issuance and delivery of the Securities do not, and will
not, result in the exercise of, or right to exercise, any put, call or other
option which, if exercised, might result in a material adverse change in the
financial condition of Peru, and there are no puts, calls or other options to
which Peru is subject which if exercised would result in such a change.
(o) Peru has applied or will apply for the listing of the Securities
on the Luxembourg Stock Exchange and will use its best efforts to cause such
listing to be approved.
(p) Peru is not aware that either Standard & Poor's Ratings Service
("Standard & Poor's") or Xxxxx'x Investors Service, Inc. ("Moody's") has made
any announcement that it will have under surveillance or review, with possible
negative implications, its rating of any of Peru's debt securities; and Peru has
not been informed by either Standard & Poor's or Moody's that it intends or is
contemplating any downgrading in any rating accorded to Peru's debt securities
or any announcement that it will have under surveillance or review, with
possible negative implications, its rating of any of Peru's debt securities.
6. Sale and Purchase of Securities. (a) Not later than 10:00 a.m.,
New York City time (or such other time as may be agreed between the
Representatives, on behalf of the Underwriters, and the Republic), on the
Closing Date, the Republic will issue and deliver one or more duly executed and
authenticated Registered Securities in an aggregate principal amount of
U.S.$__________. The Representatives shall instruct DTC as to the allocation of
interests in the Registered Bond among the accounts of DTC participants. The
Republic agrees to have the Securities available for inspection by the
Representatives at the offices of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, United
States counsel to the Republic, not later than 1:00 p.m. on the calendar day
prior to the Closing Date.
(b) Against such delivery, the Underwriters will pay the
Representatives and the Representatives will transfer or cause to be transferred
to the Republic in same day funds the Purchase Price for the Securities, less
the amounts referred to in Section 6(c) below, on the Closing Date in U.S.
dollars to such U.S. dollar account as shall be designated by the Republic to
the Representatives, not later than three Business Days prior to the Closing
Date.
(c) As compensation to the Underwriters for their commitments
hereunder, the Republic agrees to pay to the Underwriters a combined management
and underwriting commission of [____]% of the aggregate principal amount of the
Securities and a selling concession of [____]% of the aggregate principal amount
of the Securities. Such commission and concession shall be deducted from the
Purchase Price for the Securities as provided in Section 6(b) and shall be paid
free and clear of any taxes, duties, governmental charges, levies, deductions or
withholdings of any nature imposed by the Republic or any political subdivision
or taxing authority thereof or therein, unless such withholding or deduction is
required by law, in which event the Republic shall pay such additional amounts
as shall result in the receipt by the Underwriters of such amounts as would have
been received by them had no such deduction or withholding been required.
7. Resales of Securities. (a) Upon the authorization by you of the
release of the Securities to be delivered hereunder, the Underwriters are
offering the Securities for sale upon the terms and conditions set forth in the
Final Prospectus. Each of the Underwriters and its affiliates represents,
warrants and agrees that the Underwriters' offers and solicitations must be made
only in the United States and the jurisdictions identified in Schedule III to
this Agreement and must be conducted (including, without limitation, in respect
of the use and distribution of the Final Prospectus) in compliance with the
limitations and qualifications set forth in the Final Prospectus. No offers,
distributions of the Final Prospectus or solicitation may be made in any other
jurisdiction without Peru's prior written consent.
8. Covenants of the Republic. The Republic agrees with each of the
several Underwriters as follows:
(a) The Republic will notify the Representatives promptly if at any
time prior to payment of the Purchase Price to the Republic and fulfillment of
all of the conditions precedent set forth in Section 9 anything occurs which
renders or may render untrue or incorrect in any material respect any of the
representations and warranties contained in Section 5 and will forthwith take
such steps as the Representatives may reasonably require to remedy the fact.
(b) Promptly after the execution and delivery of this Agreement and
the effective date of the Registration Statement, the Republic will file the
Prospectus Supplement, in a form approved by the Representatives, such approval
not to be unreasonably withheld, with the Commission pursuant to Rule 424 of the
Securities Act, within the applicable time period prescribed for such filing by
the rules and regulations under the Securities Act setting forth, among other
things, the necessary information with respect to the terms of the offering of
the Securities. The Republic will furnish to the Representatives prior to the
filing thereof with the Commission, a copy of any amendment or supplement to the
Registration Statement, the Prospectus Supplement or the Final Prospectus (other
than any amendment or supplement to the Registration Statement relating to an
offering of securities other than the Securities) providing reasonable
opportunity for comment. The Republic will promptly deliver to each of the
Underwriters and to their counsel copies of the Registration Statement in the
form when it becomes effective and all amendments or supplements thereto
hereafter made, which relate to the Securities including any post effective
amendment (in each case including all exhibits filed therewith and all documents
incorporated therein not previously furnished to the Underwriters), including
signed copies of each consent and certificate included therein or filed as an
exhibit thereto, and will deliver to each of the Underwriters as many unsigned
copies of the foregoing (excluding the exhibits) as the Underwriters may
reasonably request. The Republic will also send to the Underwriters as soon as
practicable after the date of this Agreement and thereafter from time to time as
many copies of the Final Prospectus as any of the Underwriters or dealers may
reasonably request for the purposes required by the Securities Act.
(c) During such period (not exceeding nine months) after the
commencement of the offering of the Securities as the Underwriters or any dealer
may be required by law to deliver a prospectus, if any event relating to or
affecting the Republic, or of which the Republic, shall be advised in writing by
the Representatives, shall occur, which should be set forth in a supplement to
or an amendment of the Final Prospectus in order to make the statements set
forth in the Final Prospectus, in the light of the circumstances under which
they were made, not misleading, or if it is necessary to amend the Final
Prospectus to comply with the Securities Act, the Republic will forthwith at its
expense prepare and furnish to the Underwriters and the dealers named by any of
the Underwriters a reasonable number of copies of a supplement or supplements or
an amendment or amendments to the Final Prospectus which will supplement or
amend the Final Prospectus so that as supplemented or amended it will comply
with the Securities Act and will not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (the purchaser not knowing of such untruth or omission). In
case any Underwriter or dealer is required to deliver a prospectus after the
expiration of nine months after the commencement of the offering of the
Securities, the Republic, upon the request of such Underwriter or dealer, will
furnish to such Underwriter or dealer, a reasonable quantity of a supplemented
or amended Final Prospectus, or supplements or amendments to the Final
Prospectus, complying with Section 10(a) of the Securities Act.
(d) The Republic will use its best efforts promptly to do and
perform all things to be done and performed by it hereunder prior to the Closing
Date and to satisfy all conditions precedent to the delivery by it of the
Securities.
(e) The Republic will advise the Representatives promptly of the
filing of the Prospectus Supplement pursuant to Rule 424(b) or otherwise and of
any amendment or supplement to the Final Prospectus or Registration Statement or
of notice of institution of proceeding for, or the entry of, a stop order or of
any order preventing or suspending the effectiveness of the Registration
Statement or for any request by the Commission for amending or supplementing of
the Registration Statement, the Prospectus Supplement or the Final Prospectus or
for additional information, in each case in respect of the offering of the
Securities and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of the Final Prospectus or suspending any such
qualification, use its best efforts to obtain the prompt withdrawal thereof.
(f) The Republic will take such actions as the Representatives may
reasonably request to qualify the Securities for offer and sale under the Blue
Sky or legal investment laws of such jurisdictions in the United States and
under the legal investment laws of such jurisdictions outside the United States
as the Representatives may reasonably designate, and will file and make in each
year such statements or reports as are or may be reasonably required by the laws
of such jurisdictions inside or outside the United States and to maintain such
qualifications; provided, however, that the Republic shall not be required to
qualify as a foreign corporation or dealer in securities under the laws of any
jurisdiction other than as set forth in this Agreement and the Fiscal Agency
Agreement or to file a general consent to service of process in any
jurisdiction.
(g) (i) The payment by Peru of principal of or interest on the
Securities will be made without withholding or deduction for or on account of
any present or future taxes, duties, assessments or governmental charges of
whatever nature imposed or levied by Peru, any political subdivision thereof or
any taxing authority in Peru. If Peru is required by law to make any such
withholding or deduction, it will pay such additional amounts ("Additional
Amounts") as may be necessary in order to ensure that the net amounts receivable
by the holders of Securities after such withholding or deduction shall equal the
amount that would have been receivable in respect of the Securities in the
absence of such withholding or deduction; except that no such additional amounts
shall be payable with respect to any Security to or on behalf of a holder who is
liable for taxes or duties in respect of such Security (a) by reason of such
holder having some connection with Peru other than the mere holding of such
Security or the receipt of principal of or interest on any Security; (b) by
reason of the failure to comply with any reasonable certification,
identification or other reporting requirement concerning the nationality,
residence, identity or connection with Peru, or any political subdivision or
taxing authority thereof or therein, of the holder of a Security or any interest
therein or rights in respect thereof, if compliance is required by Peru, or any
political subdivision or taxing authority thereof or therein, pursuant to
applicable law or to any international treaty in effect, as a precondition to
exemption from such deduction or withholding; or (c) by reason of the failure of
such holder to present such holder's Security for payment within 30 days after
the principal of or interest on any Security is first made available to payment
to the holder.
(ii) No Additional Amounts shall be payable in respect of any
Security to a holder that is a fiduciary or partnership or other
than the sole beneficial owner of such Security, to the extent the
beneficiary or settlor with respect to such fiduciary or a member of
such partnership or a beneficial owner would not have been entitled
to receive payment of the Additional Amounts had such beneficiary,
settlor, member or beneficial owner been the holder of such
Security.
(h) From the date hereof through the period ending 30 days after the
Closing Date, the Republic will ensure that no other dollar-denominated debt
securities of the Republic (other than debt securities with a maturity of one
year or less) are placed or sold in the international capital markets, directly
or indirectly on its behalf, in any manner which might, in the reasonable
opinion of the Representatives, have a detrimental effect on the successful
offering and distribution of the Securities, unless the Representatives
otherwise agree in writing.
9. Conditions. The obligations of the Underwriters hereunder are
subject, in their discretion, to the following conditions:
(a) All representations and warranties and other statements of Peru
contained in this Agreement are, on the date hereof, and on the Closing Date
will be, true and correct.
(b) Prior to the Closing Date, Peru must have performed all of its
obligations hereunder theretofore required to have been performed.
(c) The Registration Statement shall have been declared effective
and no stop order suspending the effectiveness of the Registration Statement
shall be in effect on the Closing Date and no proceedings for that purpose shall
be pending before, or threatened by, the Commission on the Closing Date; all
requests for additional information on the part of the Commission shall have
been complied with to the Representatives' reasonable satisfaction; and if Peru
has elected to rely upon Rule 462(b) under the Securities Act, the registration
statement filed pursuant to such Rule shall have become effective by 10:00 p.m.,
Washington D.C. time, on the date of this Agreement.
(d) On the Closing Date, Xxxxxxxx & Xxxxxxxx LLP, your United States
counsel, must have furnished to you such written opinion or opinions, dated the
date of delivery thereof, in form and substance reasonably satisfactorily to
you, and such counsel must have received such papers and information as they may
request to enable them to pass upon such matters. In rendering such opinion or
opinions, Xxxxxxxx & Xxxxxxxx LLP may rely as to all matters of Peruvian law
upon the opinions referred to in paragraphs (e) and (f) of this Section 9.
(e) On the Closing Date, [_______], your Peruvian counsel, must have
furnished to you such written opinion or opinions, dated the date of delivery
thereof, in form and substance satisfactory to you, and such counsel must have
received such papers and information as they may request to enable them to pass
upon such matters. In rendering such opinion or opinions, such counsel may rely
as to all matters of United States Federal and New York law upon the opinion of
Xxxxxxxx & Xxxxxxxx LLP, referred to in paragraph (d) of this Section 9.
(f) On the Closing Date, [_______], Peruvian counsel for Peru, must
have furnished to you a written opinion, dated the date of delivery thereof, of,
in form and substance reasonably satisfactory to you. In rendering such opinion,
such counsel may rely as to all matters of United States Federal and New York
law upon the opinion of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, referred to in
paragraph (g) of this Section 9.
(g) On the Closing Date, Cleary, Gottlieb, Xxxxx & Xxxxxxxx, United
States counsel for Peru, must have furnished to you their written opinion or
opinions, dated the date of delivery thereof, in form and substance reasonably
satisfactory to you. In rendering such opinion or opinions, such counsel may
rely as to all matters of Peruvian law upon the opinion or opinions of
Xxxxxxxx & Xxxxxxxx LLP, referred to in paragraph (f) of this Section 9.
(h) On the Closing Date, Peru must have furnished to you, a
certificate in English, dated the date of delivery thereof, signed by a duly
authorized official of Peru, in which such official shall state that, to the
best of her knowledge after reasonable investigation: (i) the representations
and warranties of Peru in this Agreement are true and correct with the same
effect as though such representations and warranties had been made at and as of
the respective date of such certificate (other than such representations and
warranties which are made as of a specified date), (ii) Peru has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the respective date of such certificate and (iii) no
proceeding has been initiated, or to the best of her knowledge, threatened to
restrain or enjoin the issuance or delivery of the Securities or in any manner
to question the laws, proceedings, directives, resolutions, approvals, consents
or orders under which the issuance of the Securities will be effected or the
Securities will be issued or to question the validity of the Securities and none
of said laws, proceedings, directives, resolutions, approvals, consents or
orders has been repealed, revoked or rescinded in whole or in relevant part.
(i) Since the respective dates as of which information is given in
the Final Prospectus, on each of the date hereof and on or prior to the Closing
Date, there shall not have been any material adverse change, or any prospective
material adverse change, in or affecting the financial, economic or political
condition of Peru, in Peruvian currency exchange rates or exchange controls, or
in Peruvian taxation affecting the Securities, otherwise than as set forth in or
contemplated in the Final Prospectus, on each of the date hereof and at or prior
to the Closing Date, the effect of which, in any such case, is in your judgment
such as to make it impracticable or inadvisable to proceed with the issuance or
the delivery of the Securities on the terms and in the manner contemplated by
the Final Prospectus.
(j) Subsequent to the date hereof and on or prior to the Closing
Date, none of the following shall have occurred (if the effect of any such event
in your judgment makes it impracticable or inadvisable to proceed with the
issuance or the delivery of the Securities on the terms and in the manner
contemplated by the Final Prospectus, on each of the date hereof and on or prior
to the Closing Date, or would materially and adversely affect the international
financial markets or the market for the Securities): (i) a suspension or
material limitation in trading in securities generally on the New York Stock
Exchange, the London Stock Exchange or the Luxembourg Stock Exchange; (ii) a
suspension or material limitation in trading any securities of Peru on any
international exchange; (iii) a general moratorium on commercial banking
activities in New York, London or Peru declared by either United States or New
York State authorities or authorities of London or Peru, respectively or a
material disruption in the commercial banking or securities settlement or
clearance services in the United States or elsewhere; (iv) the outbreak or
escalation of hostilities involving the United States or Peru or the declaration
by the United States or Peru of a national emergency or war; or (v) the
occurrence of any calamity or crisis or change in the existing financial,
political or economic conditions in the United States, Peru or elsewhere.
(k) On or after the date hereof and on or prior to the Closing Date,
(i) no downgrading must have occurred in the rating accorded Peru's debt
securities by Standard & Poor's or Xxxxx'x; (ii) no such organization must have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of Peru's debt securities; (iii) Peru
must not have been aware that either Standard & Poor's or Xxxxx'x has announced
that it will have under surveillance or review, with possible negative
implications, its rating of any of Peru's debt securities; and (iv) Peru must
not have been informed by Standard & Poor's or Xxxxx'x that it intends or is
contemplating any downgrading in any rating accorded to Peru's debt securities
or any announcement that it will have under surveillance or review, with
possible negative implications, its rating of any of Peru's debt securities.
(l) On each of the date hereof and the Closing Date, Peru must have
furnished to you such further information, certificates and documents as you may
reasonably request in order to evidence the accuracy and completeness of any of
the representations and warranties, or the fulfillment of any of the conditions
contained in this Agreement.
(m) The Representatives on behalf of the Underwriters may waive, at
their sole discretion and upon such terms as they deem appropriate, any of the
conditions set forth above.
The documents required to be delivered by this Section 9 shall be delivered at
the offices of Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters on the
Closing Date.
10. Indemnification. (a) Peru shall indemnify and hold harmless each
Underwriter and each of its affiliates against (and, if applicable, reimburse
them for): any loss, damage, reasonable and documented expense, liability or
claim (or action in respect thereof) that arises out of or is based upon any
untrue statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in the Base Prospectus or Final
Prospectus or any preliminary prospectus or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, including any and all
reasonable and documented expenses whatsoever (including legal and other fees
and reasonable and documented expenses) reasonably incurred by you in connection
with investigating, preparing for or defending against any such losses, damages,
reasonable and documented expenses, liabilities or claims (or actions in respect
thereof), within a reasonable time after such expenses are incurred and a
detailed itemized statement thereof has been submitted to Peru; provided,
however, that Peru shall not be liable in any such case to the extent that any
such loss, claim, damage, expense or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to Peru by such Underwriter expressly for use therein; provided,
further, that such indemnity with respect to any preliminary prospectus shall
not inure to the benefit of any of the Underwriters (or to the benefit of any of
their affiliates) from whom the person asserting any such loss, claim, damage or
liability purchased the securities which are the subject thereof if such person
did not receive a copy of the Final Prospectus (or any amendments thereof or
supplements thereto), at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required by the
Securities Act and the untrue statement or omission of a material fact in such
preliminary prospectus was corrected in the Final Prospectus (or any amendments
thereof or supplements thereto) and the Republic previously furnished copies
thereof to such Underwriter.
(b) Each of the Underwriters severally, and not jointly, shall
indemnify and hold harmless Peru and each of its officials who signs the
Registration Statement against any and all losses, liabilities, claims, damages
and expenses as incurred which are based on and arise from written information
relating to such Underwriters which was furnished to Peru by such Underwriters
specifically for use in the preparation of the documents referred to in the
foregoing indemnity and will reimburse Peru for any and all reasonable and
documented expenses whatsoever (including legal and other fees and reasonable
and documented expenses) reasonably incurred by Peru in connection with
investigating, preparing for or defending against any such losses, damages,
reasonable and documented expenses, liabilities or claims (or actions in respect
thereof) within a reasonable time after such expenses are incurred and a
detailed itemized statement thereof has been submitted to the Underwriters.
(c) Promptly after receipt by an indemnified party under this
Section 10 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 10, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under Section 10(a) or (b), as the case may be. In case any such
action is brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party, provided, however, that if
the defendants in any such action include both the indemnified party and the
indemnifying party, and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 10 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not, in connection with any such action or a related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate counsel (in additional to any local counsel), approved by you
in the case of paragraph (a) of this Section 10, representing the indemnified
parties under such paragraph who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clauses (i) and (iii).
(d) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative economic benefits received by the indemnifying party on the one hand
and the indemnified party on the other. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of Peru on the one hand and
you on the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative economic
benefits of Peru on the one hand and you on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before
deducting expenses) received by Peru bears to the total underwriting discounts
and commissions received by the Underwriters with respect to the Securities
purchased under this Agreement. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by Peru on the one hand or you on the other and
Peru's or your relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. Peru and you agree that it
would not be just and equitable if contribution pursuant to this subsection (d)
were determined by pro rata allocation (even if you were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
foregoing, (i) in no case shall any Underwriter (except as may be provided in
any Agreement Among Underwriters) be responsible for any amount in excess of the
total underwriting discounts or commissions received by such Underwriter in
respect of the Securities purchased by such Underwriter hereunder and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Your obligations in this subsection
(d) to contribute are several in proportion to your respective obligations
hereunder and not joint.
(e) The reimbursement, indemnity and contribution obligations under
this Section 10 shall be in addition to any liability that any indemnifying
party may otherwise have, shall extend upon the same terms and conditions to the
affiliates, partners, directors, agents, employees and controlling persons (if
any), as the case may be, of each indemnifying party, and shall be binding upon
and inure to the benefit of any successors, assigns, heirs and personal
representatives of Peru, you, any such affiliate and any such person. If the
obligations of Peru or you set forth in this Section 10 are not assumed by
operation of law or by contract by a party or parties satisfactory to you, Peru
and you agree to arrange alternative means of providing for such obligations,
including providing insurance or creating an escrow, in each case in an amount
and upon terms and conditions reasonably satisfactory to you.
11. Default by an Underwriter. (a) If any Underwriter shall default
in its obligation to purchase the Securities which it has agreed to purchase
hereunder, you may in your discretion arrange for you or another party or other
parties, reasonably satisfactory to Peru, to purchase the Securities on the
terms contained in this Agreement. If within 36 hours after such default by any
Underwriter you do not arrange for the purchase of the Securities, then Peru
shall be entitled to a further period of 36 hours within which to procure
another party or other parties satisfactory to you to purchase the Securities on
such terms. In the event that, within the respective prescribed periods, you
notify Peru that you have so arranged for the purchase of the Securities, or
Peru notifies you that it has so arranged for the purchase of the Securities,
you or Peru shall have the right to postpone the Closing Date for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or Final Prospectus or in any other
documents or arrangements, and Peru agrees to make promptly any amendments to
the Registration Statement or Final Prospectus that in the reasonable opinion of
either you or Peru's counsel may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this subsection (a) with like effect as if such person had originally been
a party to this Agreement with respect to the Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by you and Peru as
provided in subsection (a) above, the aggregate principal amount of the
Securities to be issued pursuant to this Agreement which remains unpurchased
does not exceed one-eleventh of the aggregate principal amount of all such
Securities, then Peru shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of such Securities which such
Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of such Securities which such Underwriter agreed to purchase
hereunder) of the Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing in this Section 11 shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by you and Peru as
provided in subsection (a) above, the aggregate principal amount of Securities
which remains unpurchased exceeds one-eleventh of the aggregate principal amount
of all the Securities, or if Peru shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
Securities of a defaulting Underwriter or Underwriters, then this Agreement
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or Peru, except for the expenses to be borne by Peru and the
Underwriters as provided in Section 12 hereof and the indemnity and contribution
agreements in Section 11 hereof; but nothing in this Section 11 shall relieve a
defaulting Underwriter from liability for its default.
12. Expenses. The Underwriters shall pay an amount up to U.S.$[ ] in
respect of costs and expenses incurred in connection with the issuance and sale
of the Securities, including but not limited to: (a) the costs of printing the
Registration Statement and any Prospectus, (b) the costs of distributing the
Registration Statement and any Prospectus, (c) the costs of printing,
reproducing and distributing this Agreement, the Fiscal Agency Agreement, the
Securities and the related agreements, (d) any fees charged by rating agencies
for rating the Securities, (e) the initial, up-front fees and expenses of the
fiscal agent and any paying agent (including related fees and expenses of any
counsel for such parties), (f) all expenses and fees incurred in connection with
the clearance of the Securities for book-entry transfer through DTC, the
Euroclear System and Clearstream Banking, societe anonyme, (g) the fees and
expenses incurred in listing the Securities on the Luxembourg Stock Exchange,
(h) the fee payable to the Commission in connection with the initial filing of
the Registration Statement with the Commission, but only with respect to the
principal amount of Securities sold hereunder relating to the issuance of the
Securities offered as contemplated herein, (i) the fees and expenses of Peruvian
and United States counsel to the Republic and the Underwriters in connection
with the issuance of the Securities, and (j) the fees and expenses of qualifying
the Securities under any applicable securities laws of the several jurisdictions
as provided for in Section 8(f) and preparing, printing and distributing a Blue
Sky memorandum (including related fees and expenses of counsel); provided,
however, that, if this Agreement is terminated pursuant to Section 14 hereof,
the Republic agrees to pay all costs and expenses incurred in connection with
the preparation for the issuance and sale of the Securities and to pay, or
reimburse the Underwriters for, all of their reasonable and documented costs and
expenses related to the transaction, including without limitation, the fees and
expenses of Peruvian and United States counsel, unless it undertakes with the
Underwriters to issue the Securities within nine months following the date of
the first public filing of a Registration Statement with the Commission, except
for the Underwriters' out of pocket expenses and except that the Republic's
obligation to reimburse the Underwriters shall not exceed US$[ ].
Notwithstanding the above, the Republic agrees to pay (a) the fees and expenses
of Peruvian and United States counsel to the Republic in connection with the
issuance of the Securities, including any expenses of the Republic's counsel
associated with the due diligence review conducted by the Representatives and
(b) its out of pocket expenses.
13. Survival. The respective indemnities, agreements,
representations, warranties and other statements of Peru and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or Peru, or any official of Peru, and
shall survive delivery of and payment for the Securities.
14. Effects of Termination. If this Agreement is terminated pursuant
to Xxxxxxx 00 xxxxxx, Xxxx shall not then be under any liability to any
Underwriter except as provided in Section 10 hereof; but, if for any other
reason the Securities to be issued pursuant to this Agreement are not delivered
by or on behalf of Peru as provided herein, Peru shall reimburse the
Underwriters through the Representatives for all out-of-pocket expenses approved
in writing by the Underwriters, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of such Securities, but Peru shall then be under no further
liability to any Underwriter except as provided in Section 10 hereof.
15. Notices. All notices and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given if delivered personally or sent by reputable
international courier (postage prepaid) or facsimile transmission (with
transmission confirmed), to the parties hereto as follows:
(a) If to you:
(b) If to Peru:
Ministerio de Economia y Xxxxxxxx xxx Xxxx
Xx. Xxxxx Xx. 000
Xxxx, Xxxx
Attn:
Telecopier:
Telephone:
16. Binding Effect. This Agreement, including any right to indemnity
or contribution hereunder, shall inure solely to the benefit of and be binding
upon Peru, you and the other indemnified parties, and each of your and their
respective successors and assigns, and no other person or entity shall acquire
or have any right under or by virtue of this Agreement. No purchaser of any of
the Securities from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
17. Severability. If any provision hereof is determined to be
invalid, illegal or unenforceable in any respect, such determination will not
affect any other provision hereof, which will remain in full force and effect so
long as the economic or legal substance of the issuance of Securities and this
Agreement, the Fiscal Agency Agreement contained herein are not affected in any
manner adverse to any party.
18. Consent to Jurisdiction. (a) Peru agrees that any suit, action
or proceeding against it or its properties, assets or revenues with respect to
this Agreement (a "Related Proceeding") shall be brought exclusively in the
courts of the State of New York (the "Specified Courts"). Peru also agrees that
any judgment obtained in the Specified Courts arising out of any Related
Proceeding may be enforced or executed in any other court of competent
jurisdiction whatsoever, and any judgment obtained in any such other court as a
result of such enforcement or execution may be enforced or executed in any such
other court of competent jurisdiction (all such courts other than Specified
Courts being called herein "Other Courts"), by means of a suit on the judgment
or in any other manner provided by law; provided, however, that, in respect of
such enforcement or execution by Peruvian courts of any such judgment ordering
any payment by Peru, such payment is included in the Budget Law corresponding to
the fiscal year on which such payment is to be due (but Peru will use its best
efforts to cause such payment to be included in such Budget Law). Peru hereby
irrevocably submits to the exclusive jurisdiction of the Specified Courts for
the purpose of any Related Proceeding and, solely for the purpose of enforcing
or executing any judgment referred to in the preceding sentence (a "Related
Judgment"), of the Specified Courts and each Other Court.
(b) Peru agrees that service of all writs, process and summonses in
any Related Proceeding or any suit, action or proceeding to enforce or execute
any Related Judgment brought against it in the State of New York may be made
upon CT Corporation, presently located at 000 Xxxxxx Xxxxxx, 00xx xxxxx, Xxx
Xxxx, Xxx Xxxx, as its authorized agent (the "Process Agent"), and Peru
irrevocably appoints the Process Agent as its agent to accept such service of
any and all such writs, process and summonses, and agrees that the failure of
the Process Agent to give any notice to it of any such service of process shall
not impair or affect the validity of such service or of any judgment based
thereon. Peru agrees to maintain at all times an agent with offices in New York
to act as its Process Agent. Nothing herein shall in any way be deemed to limit
the ability to serve any such writs, process or summonses in any other manner
permitted by applicable law.
(c) Peru irrevocably consents to and waives any objection which it
may now or hereafter have to the laying of venue of any Related Proceeding
brought in the Specified Courts or to the laying of venue of any suit, action or
proceeding brought solely for the purpose of enforcing or executing any Related
Judgment in the Specified Courts or Other Courts, and further irrevocably
waives, to the fullest extent it may effectively do so, the defense of an
inconvenient forum to the maintenance of any Related Proceeding or any such
suit, action or proceeding in any such court.
(d) To the extent that Peru or any of its revenues, assets or
properties shall be entitled, with respect to any Related Proceeding at any time
brought against Peru or any of its revenues, assets or properties, or with
respect to any suit, action or proceeding at any time brought solely for the
purpose of enforcing or executing any Related Judgment in the Specified Courts
or in any jurisdiction in which any Other Court is located, to any immunity from
suit, from the jurisdiction of any such court, from attachment prior to
judgment, from attachment in aid of execution of judgment, from execution of a
judgment or from any other legal or judicial process or remedy, and to the
extent that in any such jurisdiction there shall be attributed such an immunity,
Peru irrevocably agrees not to claim and irrevocably waives such immunity to the
fullest extent permitted by the laws of such jurisdiction (including, without
limitation, the Foreign Sovereign Immunities Act of 1976 of the United States;
provided, however, that Peru hereby reserves the right to plead sovereign
immunity under the United States Foreign Sovereign Immunities Act of 1976 with
respect to actions brought against it under the United States securities laws or
any state securities laws) and consents generally for the purposes of the State
Immunity Act of 1978 of the United Kingdom to the giving of any relief or the
issue of any process in connection with any Related Proceeding or Related
Judgment. In addition, to the extent that Peru or any of its revenues, assets or
properties shall be entitled, in any jurisdiction, to any immunity from setoff,
banker's lien or any similar right or remedy, and to the extent that there shall
be attributed, in any jurisdiction, such an immunity, Peru hereby irrevocably
agrees not to claim and irrevocably waives such immunity to the fullest extent
permitted by the laws of such jurisdiction with respect to any claim, suit,
action, proceeding, right or remedy arising out of or in connection with the
Agreement.
(e) The submission to jurisdiction and the waiver of immunity by
Peru contained herein is for the exclusive benefit of you (and your affiliates
referred to in Section 10 above) and shall not extend to any other persons.
19. Currency. The payment of any amount due hereunder in U.S.
dollars or any other specified currency (the "Relevant Currency") is of the
essence. To the fullest extent permitted by law, the obligation of Peru in
respect of any amount due under this Agreement must, notwithstanding any payment
in any other currency (whether pursuant to a judgment or otherwise), be
discharged only to the extent of the amount in the Relevant Currency that the
party entitled to receive such payment may, in accordance with its normal
procedures, purchase with the sum paid in such other currency (after any premium
and costs of exchange on the business day immediately following the day on which
such party receives such payment). If the amount in the Relevant Currency that
may be so purchased for any reason falls short of the amount originally due,
Peru shall pay such additional amounts, in the Relevant Currency, as may be
necessary to compensate for the shortfall. Any obligation of Peru not discharged
by such payment shall, to the fullest extent permitted by applicable law, be due
as a separate and independent obligation and, until discharged as provided
herein, shall continue in full force and effect.
20. Time of Essence. Time is of the essence of this Agreement. As
used in this Agreement, the term "business day" means any day other than a
Saturday or a Sunday which is not a day on which banking institutions in New
York are generally authorized or obligated by law or executive order to close.
21. Governing Law. This Agreement is governed by and must be
interpreted in accordance with the laws of the State of New York, without regard
to principles of conflicts of law.
22. Counterparts. This Agreement may be executed by any one or more
of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
* * * * * * *
Please indicate your acceptance of the foregoing provisions by
signing in the space provided below for that purpose and returning to us a copy
of this Agreement, whereupon this Agreement and your acceptance shall constitute
a binding agreement between Peru and the Underwriters.
Very truly yours,
THE REPUBLIC OF PERU
By:
------------------------------------
Name:
Title:
Accepted on behalf of themselves,
and as Representatives of the Underwriters
whose names are set forth on Schedule I hereto
By:
---------------------------------
Name:
Title:
SCHEDULE I
Underwriter
Securities
SCHEDULE II
[Units/Warrants]
SCHEDULE III
Selling Restrictions
